Kantharaju K vs Kumar R
2022 Latest Caselaw 12761 Kant

                           1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 3RD DAY OF NOVEMBER 2022

                         BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

           MFA No.3821 OF 2021(MV)

BETWEEN:

KANTHARAJU K
S/O KAMANNA M
41 YEARS
R/A GIRINATHANAHALLI VILLAGE
NOW R/A VINAYAKANAGARA
LINGENAHALLI
MADHUGIEIR TOWN 572132
                                      ...APPELLANT
(BY SRI.RAGHU R, ADV.)

AND:

1.     KUMAR R
       S/O RAMACHANDRAPPA
       AGED 41 YEARS
       R/A HALKUR VILLAGE
       SIRA TALUK 572137
       TUMAKUR DISTRICT.

2.     THE MANAGER
       RELIANCE GENERAL INSURANCE
       COMPANY LTD.,
       OFFICE ADDRESS NO. 1 AND 2
       1ST FLOOR, MAGANUR COMMERCIAL COMPLEX
                           2



     NEAR KSRTC BUS STAND, B D ROAD,
     CHITRADURGA 577501.

                                       ...RESPONDENTS
(BY SRI.B.PRADEEP, ADV. FOR R2:
   NOTICE TO R1 IS DISPENSED WITH
   V/O DATED:03.11.2022)

      THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT,    AGAINST    THE   JUDGMENT     AND   AWARD
DATED:06.04.2021 PASSED IN MVC NO.470/2020 ON THE
FILE OF THE IV ADDITIONAL DISTRICT JUDGE AND MACT,
TUMAKURU, MADHUGIRI, PARTLY ALLOWING THE CLAIM
PETITION    FOR     COMPENSATION    AND    SEEKING
ENHANCEMENT OF COMPENSATION.

    THIS MFA COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                    JUDGMENT

This appeal under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') has been filed by the claimant being aggrieved

by the judgment dated 06.04.2021 passed by the

MACT, Tumakuru-Madhugiri in MVC No.470/2020.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 25.11.2019 at about 05.30

p.m., near Gubalagutte Sri.Anjaneyaswamy temple on

Thovinakere-Kaymara road, Dodderi, the claimant

being a pillion rider along with his friend by name R.

Kumar were returning on the bike bearing Registration

No.KA-06-HD-4072 by wearing helmets after

attending the arecanut business at various places like

Rangapura, Avinamadugu, Gidagalahalli, Thovinakere,

at that point of time, the rider of said vehicle rode the

same in a rash and negligent manner and in the

process of avoiding accident to dog crossing the road,

he took his bike towards left side without control. As

a result of the aforesaid accident, the claimant

sustained grievous injuries and was hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent riding of the offending vehicle by

its rider.

4. On service of notice, the respondent Nos.1

and 2 have appeared through counsel and filed written

statement in which the averments made in the

petition were denied. It was pleaded that the petition

itself is false and frivolous in the eye of law. The age,

avocation and income of the claimant and the medical

expenses are denied. It was further pleaded that the

quantum of compensation claimed by the claimant is

exorbitant. Hence, they sought for dismissal of the

petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1 and Dr.Prasad M. Gowda was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P21. On behalf of the

respondents, neither examined any witness nor

exhibited any document. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident

took place on account of rash and negligent riding of

the offending vehicle by its rider, as a result of which,

the claimant sustained injuries. The Tribunal further

held that the claimant is entitled to a compensation of

Rs.2,98,000/- along with interest at the rate of 6%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, the present appeal has been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that he

was doing areca nut business and earning Rs.35,000/-

to Rs.40,000/- per month, but the Tribunal has taken

the notional income as merely as Rs.9,000/- per

month.

Secondly, the claimant has examined the doctor

as PW-2. The doctor in his evidence has stated that

the claimant has suffered 48% limb disability and

16% to whole body. But the Tribunal has taken the

whole body disability at 13%, which is on the lower

side.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 5 days. Even after discharge

from the hospital, he was not in a position to

discharge his regular work. He has suffered lot of pain

during treatment. Considering the same, the

compensation awarded by the Tribunal under the

heads of 'loss of amenities', 'pain and sufferings' and

other incidental expenses are on the lower side.

Hence, he sought for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Firstly, even though the claimant claims that he

was earning Rs.35,000/- to Rs.40,000/- per month,

he has not produced any documents to establish his

income. Therefore, the Tribunal has rightly assessed

the income of the claimant notionally.

Secondly, the doctor in his evidence has stated

that the claimant has suffered 48% limb disability and

16% to whole body. The Tribunal considering the

injuries sustained by the claimant, has rightly

assessed the whole body disability at 13%.

Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the overall compensation awarded by the

Tribunal is just and reasonable and it does not call for

interference. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award of the Tribunal.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent riding of the offending

vehicle by its rider.

The claimant claims that he was earning

Rs.35,000/- to Rs.40,000/- per month. He has not

produced any documents to prove his income.

Therefore, in the absence of proof of income, notional

income has to be assessed. As per the guidelines

issued by the Karnataka State Legal Services

Authority, for the accident taken place in the year

2019, the notional income has to be taken at

Rs.14,000/- p.m.

As per wound certificate, the claimant has

sustained medial mallellar fractures right ankle,

fracture distal and left radius and other injuries. The

doctor in his evidence has stated that the claimant has

suffered 48% limb disability and 16% to whole body.

Therefore, taking into consideration the deposition of

the doctor and injuries mentioned in the wound

certificate, I am of the opinion that the whole body

disability at 15%. The claimant is aged about 44 years

at the time of the accident and multiplier

applicable to his age group is '14'. Thus, the claimant

is entitled for compensation of Rs.3,52,800/-

(Rs.14,000*12*14*15%) on account of 'loss of future

income'.

The nature of injuries suggests that the claimant

must have been under rest and treatment for a period

of 3 months. Therefore, the claimant is entitled for

compensation of Rs.42,000/- (Rs.14,000*3 months)

under the head 'loss of income during laid up period'.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He was

treated as inpatient for more than 5 days in the

hospital. He has suffered lot of pain during treatment

and he has to suffer with the disability stated by the

doctor throughout his life. Considering the same, I am

inclined to enhance the compensation awarded by the

Tribunal under the head of 'loss of amenities' from

Rs.10,000/- to Rs.30,000/- and under the head of

'pain and sufferings' from Rs.9,000/- to Rs.40,000/-.

Considering the nature of injuries, the

compensation awarded by the Tribunal under other

heads is just and reasonable.

10. Thus, the claimant is entitled to the

following compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 9,000 40,000 Medical expenses 53,166 53,166 Food, nourishment, 10,000 10,000 conveyance and attendant charges Loss of income during 9,000 42,000 laid up period Loss of amenities 10,000 30,000 Loss of future income 1,96,560 3,52,800 Future medical expenses 10,000 10,000 Total 2,97,726 5,37,966 Rounded of 2,98,000 5,38,000

11. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimants are entitled to a total

compensation of Rs.5,38,000/- as against

Rs.2,98,000/- awarded by the Tribunal.

The Insurance Company is directed to deposit

enhanced compensation amount along with interest @

6% p.a. from the date of filing of the claim petition till

the date of realization, within a period of six weeks

from the date of receipt of copy of this judgment.

Sd/-

JUDGE

HA/-